52 CYBER CRIME & CYBER SECURITY TRENDS IN AFRICA Rule of Law Safeguards Law enforcement powers – such as the search of computer systems, the interception of communications and others – interfere with the right to private life and other fundamental rights of individuals. Such an interference is only allowed if certain rule of law conditions are met. In particular, these powers must be prescribed by law, pursue legitimate aims, be necessary and proportionate, allow for effective remedies and be subject to guarantees against abuse. In the Budapest Convention, these safeguards are reflected in Article 15: Article 15 – Conditions and Safeguards • Each Party shall ensure that the establishment, implementation and application of the powers and procedures provided for in this Section are subject to conditions and safeguards provided for under its domestic law, which shall provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations it has undertaken under the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights, and other applicable international human rights instruments, and which shall incorporate the principle of proportionality. • Such conditions and safeguards shall, as appropriate in view of the nature of the procedure or power concerned, inter alia, include judicial or other independent supervision, grounds justifying application, and limitation of the scope and the duration of such power or procedure. • To the extent that it is consistent with the public interest, in particular the sound administration of justice, each Party shall consider the impact of the powers and procedures in this section upon the rights, responsibilities and legitimate interests of third parties. International Cooperation Finally, this treaty is to ensure effective international cooperation on cyber crime and electronic evidence by combining “traditional” mutual legal assistance with expedited means to preserve data in another country, the later with the support of a network of 24/7 points of contact. Again, cooperation is not limited to cyber crime but is extended to cooperation on electronic evidence found on a computer system in relation to any crime. In 2014, the Cyber Crime Convention Committee established a Cloud Evidence Working Group to propose solutions allowing for effective access data stored on servers “somewhere in the cloud”, that is, in foreign, multiple, unknown or changing jurisdictions. Options under consideration include an additional Protocol to the Budapest Convention. The Budapest Convention as a Guideline The Budapest Convention may thus serve as a checklist for the development of domestic substantive and procedural law on cyber crime and electronic evidence. It seems that more than 130 States around the world have used it as a guideline in one way or the other. However, the Convention as a whole is a mature, balanced and coherent document and is best considered as a whole.9 For States becoming Parties, the treaty serves as a legal framework for international cooperation. The Budapest is open for accession to any State prepared to implement its provisions.10 And indeed, an increasing number of States in Africa are deciding to follow this path. 9 10 The Budapest Convention is supplemented by an Additional Protocol on Xenophobia and Racism committed via computer systems (ETS 189). http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/189 Furthermore, the Cyber Crime Convention Committee – representing the Committee of the Parties – is adopting Guidance Notes to facilitate the use of the Budapest Convention for addressing new phenomena. http://www.coe.int/en/web/cybercrime/guidance-notes States that participated in the negotiation of the Convention (member States of the Council of Europe, Canada, Japan, South Africa and the USA) may sign and ratify it. Any other State may become a Party through accession. The result is the same.